The Ontario Court of Appeal released the decision today in Placzek v. Green, 2012 ONCA 45, upholding the decision of Justice Helen Rady in dismissing a jury in a motor vehicle collision involving a plaintiff with fibromyalgia.

The plaintiff, represented at trial by Barbara Legate and Ryan Steiner, had two previous motor vehicle collisions, and suffered injuries when the vehicle driven by her husband was struck from behind on March 4, 2003. She claimed damages for pain in the head, neck and back; headaches; and numbness throughout the left side of her body. The plaintiff’s injuries were complicated by a history of fibromyalgia, diagnosed in 1991, which she claimed were aggravated by the collision. As a result, Justice Rady ruled,

[5] Given the complexity of Mrs. Placzek’s pre-motor vehicle accident health history and the accounting evidence, as well as certain tactical decisions taken by the defence, the jury was discharged for written reasons delivered earlier. Much of the expert evidence was filed on consent, thereby saving considerable trial time. In addition, Mr. Green was unable to attend court to testify because of impending cancer surgery. His examination for discovery transcript was admitted as his testimony at trial.

Justice Rady provided written reasons for her decision on April 7, 2010, after the trial,

10 Except where the matter comes within the list of exclusions prescribed by s. 108 of the Court of Justice Act or another statute, a party to an action may require that the issues of fact be tried or the damages be assessed, or both, by a jury. It has long been recognized that the right to a jury trial is a substantive one and a party may be deprived of that right for cogent and compelling reasons only. See, for example, Jackson et al v. Hautala (1983), 42 O.R. (2d) 153 (Div. Ct.), Sloan v. Toronto Stock Exchange, [1991] O.J. No. 1808 (C.A.) and Landolfi v. Vargione, [2006] O.J. No. 1226(C.A.).

11 However, the right to a civil trial by jury is not absolute. The Charter does not confer a right to a civil jury trial: Legroux v. Pitre, [2009] O.J. No. 4505 (C.A.).

12 The onus is on the plaintiff in this case to demonstrate that justice will be better served by the discharge of the jury “…. when the facts, the law or both are such that a jury cannot reasonably be expected to be able to follow the evidence properly or to apply the judge’s charge properly … this must be determined on a case-by-case basis”: Campbell v. Singal (1989), 35 C.P.C. (2d) 283 (Ont. H.C.) as cited in DeBoer v. Bosweld, [1991] O.J. No. 1721 (Gen. Div.).

* the plaintiff returned to work for a significant period between the time of the collision and the trial, necessitating several assessments of lost income;

* the plaintiff had suffered two work related injuries between the time of the collision and the trial;

* there was competing medical, actuarial, vocational and rehabilitation evidence;

* the issue of the deductibility of collateral benefits had to be addressed.

14 Justice Abbey observed that “… the combination of these foreseeable complexities would present intolerable difficulties for a jury over the course of this trial and that as a result, the case is one which ought not to be tried by a jury.”

15 There are examples in the case law where a jury notice has been struck because the plaintiff was involved in multiple car accidents, creating complexity in assessing the damages attributable to each one See, for example, Wheater v. Walters, [1992] O.J. No. 433 (Gen. Div.) and Gorman v. Falardeau, [2005] O.J. No. 2213 (C.A.).

The Court of Appeal indicated that trial judges retain broad discretion to discharge a jury, which the court will not interfere with except in certain circumstances. In Hunt v. Sutton, Austin J.A. stated,

[52] The remaining issue in the appeal challenges the trial judge’s discharge of the jury upon the grounds of complexity and public commentary. The law in this regard is clear. The right to trial by jury is a statutory right and a substantial one. A judge, on the motion of a party, may strike out a jury notice or discharge a jury. The trial judge is in the best position to determine how to exercise that power. The decision of the trial judge to keep or to discharge a jury is an exercise of a discretionary power. An appellate court may not interfere with that exercise unless it has been carried out arbitrarily, capriciously or on wrong or inapplicable principles…
[citations omitted]

The analysis by the court of the trial judge’s decision is as follows,

[8] We had the benefit of a careful and critical review of the trial judge’s reasons for discharging the jury. As we read those reasons, paras. 16 through 20 speak to the anticipated complexity of the evidence relevant to the damage assessment. In the trial judge’s view, that complexity arose out of several aspects of the evidence. First, there was the respondent’s pre-existing medical condition and the need to determine the impact of that condition on the respondent’s post-accident medical condition (paras. 16-18). Second, there was competing expert evidence relating to the respondent’s loss of income and loss of future income claims. The respondent was a self-employed realtor and there were several factual variables relevant to her lost income claims. Those variables complicated the quantification of that claim (para. 19). Third, there was competing and somewhat complex medical, engineering and biomedical evidence (para. 20).

[9] Based on these evidentiary complexities, the trial judge concluded, at para. 21:

As a result, of all of the foregoing I am satisfied that this case is of sufficient complexity that it is in the interest of justice that the jury notice be struck.

[10] It was open to the trial judge to reach this conclusion. While counsel for the appellant mounted a powerful argument in support of his position that this was not really a complicated case at all, we cannot describe the trial judge’s characterization of the evidentiary complexity as arbitrary, capricious or unreasonable. Other judges may have reached a different assessment of the complexity of the evidence and declined to strike the jury. The fact that other judges may have exercised their discretion differently is, of course, not a basis upon which this court can interfere with this trial judge’s exercise of her discretion.

Evelyn ten Cate of Foster, Townsend, Graham and Associates, LLP wrote about the trial decision in The Lawyers Weekly,

It is difficult to see how the facts in Placzek differ from those in most complex chronic pain cases decided by juries regularly. Pre-existing complaints, other car accidents and subsequent accidents are part of the fabric of everyday life and are well-known to juries. Likewise, juries are often called on to make decisions based on conflicting testimony of medical, engineering and accounting experts. Their expertise, or the admissibility of their testimony, typically form the subject of a voir dire in advance of their testimony, and take place in the absence of the jury.

It remains to be seen whether other trial judges will follow Justice Rady’s lead or distinguish Placzek on its facts.

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